As if Michael Moore and his documentary film Fahrenheit 9/11 needed any more publicity, the conservative group Citizens United weighed in just in time to help.
Citizens United has a reputation for being outspoken. Its own ads critical of former President Bill Clinton aired during his recent 60 Minutes interview. Now the group is making news again by calling for government limits on TV and radio ads for Moore's new movie, alleging they are tantamount to campaign ads and should be subject to federal laws on campaign finance.
News of the Citizens United complaint was just part of the controversy over Fahrenheit 9/11, a media storm that helped the film top all other releases at the box office last weekend (and become the most successful documentary ever).
Helping to publicize the film was obviously not part of the motivation for Citizens United. But it's hard to see how the complaint will accomplish much else. Citizens United has two problems here. First, its complaint goes to the Federal Election Commission, which never rushes to judgment. It would be stunning if the FEC ruled one way or another before Election Day. And second, even if lightning struck and Citizens United won a speedy decision, it wouldn't make all that much difference.
To understand why, you have to look at how the First Amendment and campaign finance laws collide. The current law, authored by Sens. John McCain (R-Ariz.) and Russell Feingold (D-Wis.), sets new limits on financing political ads on TV and radio. Candidates and party committees cannot run ads financed with corporate or union money; and, at certain key times on the calendar, independent organizations such as Citizens United cannot either.
The ban on corporate or union funding applies to any broadcast ad that identifies a candidate for federal office and airs within 60 days of Election Day, or 30 days of the convention that would nominate that candidate.
Of course, these rules have an exception, for "news articles, editorials and commentary." Not even Congress wants to gag the free press. The question yet to be definitively answered: How far does the media exemption go?
Not far enough to protect the ads for Fahrenheit 9/11, according to David Bossie, president of Citizens United. He says that Moore, his producers or distributors can't advertise after July 30, since the ads -- at least those seen so far -- refer to a federal candidate: President George W. Bush. And the Republican convention begins Aug. 30. Bossie launched a full frontal assault last week: a complaint to the FEC, a copy to Attorney General John Ashcroft, letters to TV and radio stations around the country -- reminding them that they're legally required to keep records of airtime sales for political ads.
This raises a lot of questions that the FEC hasn't even begun to address up to now. For starters: Does Fahrenheit 9/11 qualify for exemption as "commentary"? If so, does the exemption cover ads for the commentary as well? Is the movie the product of a media company? And if it is, does that matter?
Or, as one WNYC listener asked me last week, what if Moore and his people rewrite the ads, so they don't show or refer to President Bush? The listener's suggestion: "Fahrenheit 9/11 -- the movie the federal government doesn't want you to see."
Bossie's strategy -- at least the legal part of it -- rests on the novel idea that the FEC will act quickly and decisively. The idea would be less outlandish if the FEC had not just punted when confronted with essentially the same issue on the same day Bossie filed. Considering whether another documentary filmmaker qualified for the media exemption, the six commissioners (three Republican, three Democratic) agonized, fretted, and then voted to decide later.
Even when the commission eventually decides, it's a good bet that if Moore loses, he'll go to court to challenge the ruling if the election hasn't already happened. And if it's after Election Day, who cares?
But Bossie may have another strategy at work too. Like Moore, he knows how to work the media. In the early 1990s, Bossie was a private investigator in the Whitewater case, equally skilled at finding information and getting it into the political debate. Later, he went to work for the House Government Reform Committee, where he spearheaded the panel's relentless probe of Clinton's campaign fundraising.
More recently, Bossie has handled the FEC issue like a master, starting with a breathless article in a Capitol Hill newspaper, the day before the commission met. The headline: "'Fahrenheit 9/11' ban? Ads for Moore's movie could be stopped on July 30." A ban that soon seems unlikely. But we are going to see many more cases like this. McCain-Feingold significantly changed the way money flows into the political system. And with this high-stakes election getting more emotional all the time, more money than ever is pressing to get in.
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